Surratt v. Petrol, Inc., 3--373A27

Decision Date20 June 1974
Docket NumberNo. 3--373A27,3--373A27
Citation312 N.E.2d 487,160 Ind.App. 479
PartiesMary SURRATT, as guardian for Althama Surratt, and Joan Henderson, Plaintiffs-Appellants, v. PETROL, INC., Defendant-Appellee.
CourtIndiana Appellate Court

Thomas H. Singer and Alexander Lysohir, South Bend, for plaintiffs-appellants; Lysohir & Singer, South Bend, of counsel.

Vincent P. Campiti and Arthur A. May, South Bend, for defendant-appellee; Crumpacker, May, Levy & Searer, South Bend, of counsel.

GARRARD, Judge.

This is an action brought by the passengers in a stolen automobile for injuries they sustained when the automobile crashed. The background may be briefly stated as follows: On October 29, 1968, during the morning an employee of Petrol, Inc. parked a company car on the street across from the Petrol gas station. The employee left the keys in the ignition, and around 11:00 a.m. one Raymond English stole the automobile. No one saw English leave with the auto, but shortly after 11:00 a.m. an employee of Petrol discovered the car was missing and reported the theft to the police.

After taking the car, English drove around for a while and picked up two male friends, Donald Smith and Alonzo Poindexter. They went to a Burger Chef and then drove to LaSalle High School. The plaintiffs, high school students, were just leaving school at the time and asked English for a ride to the post office and home. This English agreed to.

Meanwhile, one William Farmer, manager of the Petrol service station and bulk plant, had been out looking for the stolen car. He first saw the car at the Burger Chef and followed it when it left. He then stopped at a gas station and directed the attendant to call the police and inform them that he was following the stolen car and would keep it in sight. Although he momentarily lost sight of the car, he found it again at the high school. As the car, then occupied by the plaintiffs, left the high school, Farmer pulled his car into their lane as they approached and then turned and followed them when they pulled around him. At this point, English accelerated and Farmer continued to follow. English avoided a red light by driving through a corner gas station and Farmer followed. English then disregarded a stop sign and an intersection collision with a third automobile resulted. Henderson and Surratt were both injured and brought this action against Petrol asserting liability based upon negligence of the Petrol employee in leaving the keys in the ignition and the actions of Farmer in pursuing the vehicle. 1

In due course the defendant Petrol, Inc. moved for summary judgment on each of the theories of liability. The trial court entered partial summary judgment on the issues relating to the ignition keys having been left in the car and subseqently granted summary judgment on the other issues. These grants of summary judgment are the basis of this appeal.

I. LEAVING KEYS IN IGNITION NOT PROXIMATE CAUSE OF INJURIES.

In 1952 in Kiste v. Red Cab, Inc., 122 Ind.App. 587, 106 N.E.2d 395, this court held that, as a matter of law, a similar claim for personal injuries sustained in a crash with a stolen car, was insufficient where it was based upon alleged negligence of the owner in leaving the car parked unattended with the keys in the ignition and the motor running.

Appellants, however, assert that we should reconsider our ruling in Kiste because of the lapse of more than 20 years since that decision and the asserted increase in automobile theft statistics during the interval. Secondly, appellants assert that in the instant case the car was left unattended in a 'high crime area' and, as such, falls within an expressed exception to the rule recognized in Kiste.

We examine the latter assertion first. Appellants assert that the rule established in Kiste is that the plaintiff cannot recover for the reason that negligent operation of the motor vehicle by a thief is not a foreseeable risk chargeable to the owner, unless the owner negligently leaves the car with the keys in the ignition in a high crime area.

It is true that in Kiste the court, after surveying other jurisdictions and noting that liability under statutes prohibiting the operator from leaving the keys in the ignition existed only in the District of Columbia and in the First District of Illinois, observed obiter:

'It is our observation that in the absence of clear legislative declaration this result would not ordinarily be reached except where the surrounding circumstances clearly point to both a high probability of intervening crime, and of like pursuant negligent operation of the vehicle by the thief. We do not presume to affirm or deny that such circumstances are highly probable in the District of Columbia or the First District of the Appellate Court of Illinois. We do assert with some satisfaction that such circumstances are not reasonably foreseeable in this jurisdiction.' 122 Ind.App. 587, 596, 106 N.E.2d 395, 399.

However, the holding in Kiste makes it clear that the court was not attempting to carve an exception by the above-quoted language for the relevance of foreseeable risk is to the duty owed by the actor. The result reached in Kiste was not based upon lack of duty.

In other words, the possible relevance of foreseeability is dependent upon the harms that the statute in question was enacted to guard against. Upon that question the court stated:

'We are urged to construe the statute and determine whether the legislative intent, as expressed in the act, was to prevent theft of automobiles and all harms resulting therefrom or whether the intent was to define as negligence per se acts which were already recognized as negligence in the common law. . . . However, a decision upon this issue is not required.' 122 Ind.App. 587, 593, 106 N.E.2d 395, 397. (our emphasis)

The court proceeded by stating:

'The case can be decided upon the issue as to whether 'stopping the engine, locking the ignition and removing the key' was the proximate cause of the injury occasioned by the negligent operation of the vehicle by a thief. It is upon this latter issue that the cases have been most decisively adjudicated.' 122 Ind.App. 587, 593--594, 106 N.E.2d 395, 398. (our emphasis)

'Although the statute may define an act as negligence, it does not satisfy the requirement of proof that the particular act was the proximate cause of the injury.' 122 Ind.App. 587, 595, 106 N.E.2d 395, 398.

It is our opinion that Kiste properly decided that as a matter of law, the negligent leaving of the ignition keys in the automobile could not be considered the proximate cause of injuries later resulting from the negligent operation of the stolen automobile by a thief. Accordingly, the trial court properly granted summary judgment to the defendant upon this issue.

Because of our holding on the first issue, plaintiffs' three separately asserted errors relating to the trial court's rejection of crime study statistics pertaining to auto theft and a request for admission that the area where defendant's car was originally left was a high crime area were harmless error, at most, and will therefore not be treated further herein.

II. DUTY OF CARE TO DISCOVERED TRESPASSERS ON CHATTELS.

The second principal contention of the plaintiffs is that the trial court erred in granting summary judgment on the liability question presented by Farmer's actions in attempting to recover the automobile and/or apprehend English.

In considering the court's action on this issue, the now well-established law of Indiana relating to motions for summary judgment in tort cases must be borne in mind. In deciding whether there is an issue of material fact in a case, all doubts must be resolved against the party asking for summary judgment. If there is a question of state of mind, credibility of witnesses, or weight of testimony, summary judgment should be denied. Thus, in determining whether a question of material fact exists, the trial court must premise its ruling upon the basis of the evidence most favorable to the opponent of the motion and the reasonable inferences to be drawn therefrom. Doe v. Barnett (1969), 145 Ind.App. 542, 251 N.E.2d 688; Verplank v. Commercial Bank (1969), 145 Ind.App. 324, 251 N.E.2d 52; Wozniczka v. McKean (1969), 144 Ind.App. 471, 247 N.E.2d 215; accord: Central Realty, Inc. v. Hillman's Equipment, Inc. (1969), 253 Ind. 48, 246 N.E.2d 383.

Within this context, we examine the plaintiffs' claim and the defenses asserted thereto.

Plaintiffs' basic contentions, submitted by stipulation as a result of the pre-trial conference, are that the defendant was guilty of negligence, or in the alternative, was guilty of wanton or willful misconduct, in attempting to run the stolen vehicle off the road, flashing a gun at its occupants and chasing the vehicle at high rates of speed at a time after the original theft when the defendant knew, or in the exercise of reasonable care should have known, that the driver of the automobile had taken on as passengers the plaintiffs who were not a part of the theft. 2

The trial court, which did an admirable job in its order setting forth the relevant undisputed facts and its specific findings, granted the summary judgment upon the alternative bases that (a) the defendant owed to the plaintiffs no duty of reasonable care and this was specifically true because at the time of the injuries, plaintiffs were trespassers, and (b) the activity of Farmer in either following, chasing or attempting to apprehend the thief was justified, excused and privileged.

While the element of duty has long been recognized as necessary in an action for an unintentional tort, 3 some examination of its import is helpful in the present case.

The term properly has two dimensions. The first concerns whether the defendant owed a duty to the party who appears as plaintiff, for if he did not there can be no recovery.

Dempsey v. Test (1933), 98 Ind.App. 533, 184 N.E. 909.

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